I have handled many lunchtime cases, where an employee (or a class) claim that they were not accorded a full thirty-minute lunch and therefore that half-hour (and many others perhaps) is compensable time. There are many occasions when an employee clocks in after not taking the full lunch, but rather twenty-five minutes or a variation on that theme. Many Departments of Labor deem that allegedly truncated lunch period as a missed lunch. That is wrong and now a federal appellate court has spoken on this issue, warning workers that they cannot, by contrivance, get a paid lunch period when they have no right to one. The case is entitled Wirth v. RLJ Dental and issued from the Seventh Circuit Court of Appeals.
Meal periods, to be non-compensable, must be at least a half-hour in length and the employee must be completely relieved from his job duties. Some States, like New Jersey, also require that the employee be allowed to leave the premises, although the FLSA does not require that. When the employer allots the full lunch period, but the employee comes back early, what is the standard to be applied for determining compensability. Well, the Seventh Circuit asserted that the “focus [should be] on what the employer provided, not what the employee elected.”
Here, the employee had one hour for lunch, did not do any work during that time, and could leave the work premises. Sometimes, the employee did not take the full hour, but rather took less time, sometimes less than thirty minutes. The employer noticed this and reminded the employee to take the whole hour. She did not and the evidence showed that this was a deliberate initiative on her part.
The employee claimed that every time her lunch period was less than thirty minutes, she was entitled to compensation. The lower court dismissed the case and an appeal to the Seventh Circuit followed. Cogently, the appellate court noted that the correct analysis is not what the employee may choose to do, i.e., come back early from lunch, but what the employer policy provided, i.e., full hour of lunch. Under that analysis, the employee was provided with a legally proper lunch period and chose not to avail herself of that full lunch time. That deliberate choice doomed her case.
The Wirth case illustrates the same scheme that I have seen many times and that employees tend to play. Employees think that if they intentionally shave a few minutes (or more) from their lunch period, absent any employer compulsion, that, somehow, converts that lunch period, or every lunch period, into compensable time. It does not, provided the employer makes clear to employees that they have their full lunch period and must take it and there is no mandate to come back to work before the end of that period. This should eliminate any “pressure” to return early (and get paid for it).